war resister fleeing homophobic persecution appeals to federal court

This happened while I was away, but perhaps you missed it, too.
A lesbian who deserted the U.S. army argued before the Federal Court in Ottawa on Tuesday that she should be allowed to remain in Canada as a refugee.

Pte. Bethany Smith, also known as Skyler James, is seeking a judicial review of a decision by the Immigration and Refugee Board to reject a refugee claim. Smith said she feared for her life due to the treatment she received in the army as a result of her sexual orientation.

"I had to endure not only verbal and physical harassment, but death threats and harassment letters on my door every day," Smith told reporters Tuesday outside the court. Following the hearing, she said she was staying positive and hoping for the best.

Smith, who now lives in Ottawa, said she was treated as "less than human" by other soldiers at the base in Fort Campbell, Ky., after they saw her holding hands with another woman at a local mall and found out she was a lesbian. One soldier who worked with her on the base's fleet of vehicles would pick her up, shake her and throw her to the ground on a daily basis, she told CBC News.

"There were sergeants standing around laughing with him," she added.

She also received anonymous hate mail at her door every night, she said, including one letter that warned: "We will suffocate you in your sleep."

Smith later learned that a gay soldier had been beaten to death in his bed with a baseball bat at the Fort Campbell base in 1999.

Discharge denied

Fearing for her life, she asked her first sergeant for a discharge, which is usually granted automatically to soldiers who admit to homosexuality.

"He told me straight up, 'We'll figure out the paperwork when we get back from deployment," she recalled. At the time, Smith was scheduled to be sent to Afghanistan.

Her lawyer, Jamie Liew, suggested the military went against its own policies because it needed more soldiers for its overseas deployments.

After being denied a discharge, Smith, who was 19 years old at the time, drove to the border at Cornwall, Ont., with another soldier. The War Resister Support Campaign, a group that has helped other U.S. deserters, helped her settle in Ottawa.

"I have a new home here and a new family … friends and a job," she said. "Everything I have here is set up as if I was born here, and being ripped out of this environment would change everything."

If Smith returns to the U.S., Liew believes that in addition to threats to her life, Smith would face military charges of desertion, absence without leave and indecency.

"Because it is a crime to be engaging in homosexual activity under the military criminal provision," Liew said.

She alleged that the U.S. military judicial system is "not up to par" with Canadian and international human rights standards.

"Why should we allow people to be sent back to be put through a process that is not fair?"

Smith said military cases are decided by tribunal members drawn from the accused's own unit — "The same people who are causing you problems."

Other U.S. deserters have failed in their appeals to Canadian courts, and some are serving prison terms after being deported. However, Liew said that shouldn't have any bearing on Smith's case.

"Bethany is coming with an extremely different story. She's coming because of the way her life was threatened because of her sexual orientation."

Most other deserters who have sought refugee status in Canada said they fled to avoid being deployed to the war in Iraq, as they opposed the war.

If the Federal Court rules in Smith's favour, she will be able to make her case again before a different IRB member, said Liew. She said the previous refugee board decision erred by not dealing with whether Smith would be persecuted if she returns to the U.S.

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